C2005/298, Transcript of Proceedings [2005] AIRCTrans 1708 (12 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12442-1

DEPUTY PRESIDENT MCCARTHY

C2005/298

KIRFIELD LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/298)

PERTH

11.07AM, THURSDAY, 04 AUGUST 2005

PN1

MS J AUERBACH: I appear on behalf of the applicant.

PN2

MS K SCOBLE: I appear on behalf of the CFMEU, with me is MS BOW.

PN3

MR D C MCLEAN: I appear on behalf of the AMWU.

PN4

THE DEPUTY PRESIDENT: Leave is granted, if you were implying that you were seeking that.

PN5

MS AUERBACH: Thank you, sir. I have to say thank you to the Commission for bringing this matter on so promptly. We confirm that this is an application under section 127 of the Workplace Relations Act. The history has been set out I believe in quite some detail in the application. What we have here is two agreements which have been certified in this Commission and not very long time ago, in fact, I believe they were certified in about April 2005, the ink is still fairly fresh, and we're dealing with a project that only has a few more months to run. Essentially we have had a history, sir, of a number of strike actions on this project during the short term that it has been in existence and the history has been set out in paragraph 4 of the grounds.

PN6

We've now got another issue once again over some working hours and meal breaks and essentially what the applicant is saying, Deputy President, is that we have agreements that clearly provide for a dispute settlement procedure in paragraphs 5.1 and 27 in the agreements respectively. The agreements provide that any disputes can be taken to the Commission for settlement of any issues or any interpretation of the agreement, and in fact we encourage that that be done, if that issue is still alive. But as far as we can see, and we submit that once again we have an unauthorised strike industrial action in circumstances where the parties have only recently committed not to undertake industrial action and where we say the parties are clearly in breach of that commitment.

PN7

If there are issues in relation to matters in dispute as to whether or not industrial action is occurring, we're happy to call evidence, but I believe it's not in dispute that industrial action is occurring and I believe it's not in dispute that the dispute settlement procedure has not been followed as outlined in the agreement. On that basis we seek an order for the workers to return to work. If there are live issues, we are more than happy for the workers and the union to take those live issues through the proper dispute settlement procedure through this Commission in accordance with the agreement.

PN8

THE DEPUTY PRESIDENT: What's the term of the order you're seeking?

PN9

MS AUERBACH: Sorry, sir?

PN10

THE DEPUTY PRESIDENT: The term of the order you're seeking, six months?

PN11

MS AUERBACH: Or - yes, up to six months, three, four months, sir, depending on the Commission's discretion of course. But simply looking at the project, sir, we've had a number of actions and we say in each case unwarranted. The project has been very much disturbed by the industrial action and we simply just want to complete the project without any further action and we're happy for any other disputes to just be dealt with through the proper channels.

PN12

THE DEPUTY PRESIDENT: Yes, thank you. Ms Scoble or Mr McLean?

PN13

MS SCOBLE: Thank you, your Honour. I only have limited instructions in this matter as I've had some difficulty contacting our shop steward from Kirfields who is on site. I did speak to him yesterday and he has identified to me two issues. Firstly that the Kirfield employees are being required to work 12 hour shifts. It's the opinion of those employees that on that basis they should be entitled to a paid meal break as that is part of customer practice in the industry. Also there's an issue in relation to rostered days off. The rostered day off has been changed from a Sunday to a Thursday so that it lines up, I think, with the Newcrest rostered day off.

PN14

In relation to the grounds that have been put forward by my friend, I don't have specific instructions on the instances that are outlined in those grounds except to say that on examination of what's in the document in front of me it appears that at least one, perhaps three of those grounds only relate to short periods of what stoppage that the applicants are alleging consist of industrial action. I believe the first one looks like it's about a meeting, the second one also in relation to a meeting. The third one it seems quite clear that it's from 6.10 to 8.30. So I suppose I have some difficulty with saying that those grounds will found a six months order.

PN15

In the absence of any further information from our shop steward there's not a great deal more I can say except to say on the face of it it doesn't seem that the application before the Commission today would warrant the exercise of the Commission's discretion to issue the 127 order that's sought.

PN16

THE DEPUTY PRESIDENT: Thank you. Mr McLean?

PN17

MR MCLEAN: Thank you, Deputy President. I'm also quite sketchy in my instructions as well, sir. I do have the advantage of yesterday having a couple of discussions with an organiser of the unions, Mr Duffy, that was on site and I've spoken with him again this morning. Unfortunately he's not available until this afternoon. He's back in Perth now, he had further commitments this morning, but I believe that he is available later on this afternoon if necessary. As I said it's sketchy, and I apologise for that, but he informed me yesterday that a stoppage had taken place and was actually taking place when he arrived at the site, that emotions were running high and that the issues that have been identified were the ones that my friend Ms Scoble just identified to you, the two prime ones.

PN18

The main one being the half hour meal break that's been a running sore for some time and that there has been a reduction from 12 hour shifts where people were basically paid eleven and a half hours given the 30 minute unpaid meal break. That that had been reduced to eleven and a half hours with 11 hours pay and that that had been the subject of some disputation on the job over a reasonably long period, that attempts had been made to resolve it, that a series of negotiations had occurred in accordance with the dispute settlement procedure and that it was simply going nowhere and emotions had built up on the job to the stage where they spilled over yesterday and he said to me that emotions were running fairly hot at around mid morning when he arrived and those emotions continued to run hotter as the day went on.

PN19

There was a meeting at 1400 hours yesterday where a decision was taken by the workforce to strike indefinitely. I can't be of much more assistance. I'm instructed that emotions are wound up and are fairly hot at this stage and I would say that it probably is a little bit premature to be looking at this type of order and that it may well add fuel to the fire, without trying to be offensive. If it was to issue in the form that it's sought for the period of time that is sought, I suppose in worker's language, they need a bit more time to have a bit of a go at each other before some rationality can be applied to the dispute, is my understanding, sir.

PN20

So I would say in relation to the grounds, we've seen situations that are more serious. The employer is well and truly aware of this ongoing open sore and it takes two to tango. They don't come here with clean hands in relation to the paid meal break in my submission and therefore should not have in my submission access to the incredible remedy that they seek. If the Commission pleases.

PN21

THE DEPUTY PRESIDENT: Thank you. Ms Auerbach, when did the applicant commence work on this project?

PN22

MS AUERBACH: I believe in late April/early May.

PN23

THE DEPUTY PRESIDENT: And there's a few months to go, is that right?

PN24

MS AUERBACH: I believe that is till December, I believe, sir.

PN25

THE DEPUTY PRESIDENT: Nearly six months, or five months. The regular hours of work are what?

PN26

MS AUERBACH: Sir, the roster that was commenced at the start of the project was a 13 day fortnight, from 6 am to 6 pm, with a 15 minute break in the morning, paid break, a half hour unpaid lunch break, and because of the overtime worked pursuant to the agreement, a 20 minute break in the afternoon, paid break. Those hours were changed after consultation with the workforce to an eleven and a half hour day because the days were getting shorter and as a result of that and with the approval of the mine manager, the hours were reduced to eleven and a half hours per day and every Sunday was - and every second Sunday that was previously free, was being worked for six hours basically to make up the same amount of hours.

PN27

That was not to the liking of the workforce and as a result of that, the applicant acted immediately and held discussions immediately in early August, 2 August, with the workforce to say, okay, you want to go back to the 12 hour day and you want to go back to having your Sunday off, we are happy to do so. It was in the course of those negotiations then that it was raised, but we want our meal break to be paid. Sir, it's quite clear, we don't want to go into the ins and outs of this particular claim because that really is a matter for another day. That is - - -

PN28

THE DEPUTY PRESIDENT: I wasn't asking you that. I was asking for another purpose, which will become clear in a moment.

PN29

MS AUERBACH: Sure, and as a result of that the labour has been withdrawn. Now clearly that's a matter that is not authorised under the Act and that is why we're seeking the discretion to be exercised.

PN30

THE DEPUTY PRESIDENT: Yes. Mr McLean, can I turn to you?

PN31

MR MCLEAN: Yes, sir.

PN32

THE DEPUTY PRESIDENT: Are there delegates on site?

PN33

MR MCLEAN: Yes, sir, that's my understanding, there is, and we had an organiser who was on site as well yesterday.

PN34

THE DEPUTY PRESIDENT: Yesterday?

PN35

MR MCLEAN: Yes, sir.

PN36

THE DEPUTY PRESIDENT: Is there potential for an organiser to be on site in the immediate future?

PN37

MR MCLEAN: I don't have instructions on that, sir, but I would imagine that if there's a live blue, that that will be the situation. But I can't commit to that, sir. I just don't have those instructions.

PN38

THE DEPUTY PRESIDENT: Yes. The communication between the union and your delegate on site, what sort of facility or capacity is there, delegate or delegates?

PN39

MR MCLEAN: I was spoken to by the organiser yesterday on a mobile phone and I called him back on his, so I know there's mobile communications. As far as getting hold of our delegates - I apologise, sir, I don't even know who that is. I've only been on the job three days.

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MR MCLEAN: But the organiser is available, I understand, after 12, some time after 12 who can provide those details, but I suppose the simple answer, yes, it is possible to call people on the site.

PN42

THE DEPUTY PRESIDENT: I was going to ask you is there capacity for that organiser, who has just come from site, to return immediately. You have no instructions on that, I think you effectively answered, yes.

PN43

MR MCLEAN: I don't, sir. I certainly, you know, I wouldn't like to commit the organisation to that but I certainly don't want to be appearing to be saying that that's not a possibility.

PN44

THE DEPUTY PRESIDENT: Ms Auerbach, what's the transport arrangements or capacities for people to get to and from site?

PN45

MS AUERBACH: I believe there's flights going in and out just about every day. Yes.

PN46

THE DEPUTY PRESIDENT: What, one flight, two flights, what?

PN47

MS AUERBACH: I don't have instructions on that, sir, I'm not sure.

PN48

THE DEPUTY PRESIDENT: Ms Scoble, have you had an organiser up there recently, do you know?

PN49

MS SCOBLE: The last time there was an organiser up there was when Mr Leggo was there in relation to the dispute about the termination of Mr Bursim's employment.

PN50

THE DEPUTY PRESIDENT: There wasn't an organiser there last week?

PN51

MS SCOBLE: No. That would have been more than a couple of weeks ago. I mean, certainly I'm in the same position as Mr McLean. I can't say yes, we would send someone up there, but certainly I understand the usefulness of someone going up there.

PN52

THE DEPUTY PRESIDENT: Go off record.

OFF THE RECORD

PN53

THE DEPUTY PRESIDENT: Yes, we went off record. There was yet another alarm of some sort that disrupted the proceedings. Yes, proceed, Ms Scoble.

PN54

MS SCOBLE: Thank you, your Honour. Certainly we recognise the value in someone going up there. I mean, I don't think, subject to the requirements of, you know, what people are allocated to do, that the union would have any objection to someone going up there.

PN55

THE DEPUTY PRESIDENT: Yes. Off record again.

OFF THE RECORD

PN56

THE DEPUTY PRESIDENT: Ms Auerbach, what I'm contemplating is issuing an order, not in the terms you're seeking, but what concerns me is the issuance of an order and the explanation of the affect of that order by the unions that you're seeking that the order be made against and the arrangements, given that there's no organiser, of the organisations here on site, whether there should be an opportunity for an organiser of the organisations involved go to site in time to explain to whoever they need to explain it to, or the workers, the effect of that order. So what I'm contemplating is issuing an order to take effect in 24 or 36 or whatever hours' time. Do you have any view of that?

PN57

MS SCOBLE: To take effect, sorry, sir, I'm having difficulty hearing you, 24 hours?

PN58

THE DEPUTY PRESIDENT: In 24 hours or 36 hours or Saturday morning or tomorrow or some time, whatever, do you have any view about that?

PN59

MS SCOBLE: Would I be able to have a minute, if I might?

PN60

THE DEPUTY PRESIDENT: What I'll do is I'll have a brief adjournment and Ms Scoble and Mr McLean, if you have a view about that either, you can express it when you have that opportunity and any instructions you may need to seek. I'll adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.29AM]
<RESUMED [11.42AM]

PN61

THE DEPUTY PRESIDENT: Now, Ms Auerbach?

PN62

MS AUERBACH: Thank you, sir, for that opportunity. We've had some discussions now. I'm still instructed to seek an order for return to work as an immediate return to work simply because of the immediate and the flow-on costs of having the workers off work. As an alternative, but not preferred option for the applicant, there is a 6.30 flight tomorrow morning on which there are some spare seats and delegates could be, or union officials could be flown up to communicate the order. As I say, it's not the applicant's preferred option.

PN63

THE DEPUTY PRESIDENT: Yes, I understand that. Mr McLean, or Ms Scoble, do you have any - - -

PN64

MS SCOBLE: Thank you, sir. In relation to an order taking effect immediately we see a particular problem with that. I think as Mr McLean said, that would only serve to inflame things, particularly my understanding is that a lot of people would be quite prepared to return to work this afternoon, sir. We're certainly happy to try and organise some union officials to get on the plane tomorrow morning. What our preferred course of action would be is that there be time given for those union officials to actually try and sort things out on the site and then if things don't get sorted out and subsequently there is no return to work, then an order would take effect. We think that that's perhaps the most appropriate way to deal with it in the circumstances in the exercise of your discretion.

PN65

THE DEPUTY PRESIDENT: Yes. Mr McLean, is that the same position for you?

PN66

MR MCLEAN: That is and I support that position, sir. An order that springs into effect if there is no return, but that springs in, you know, at 36 hours is a sensible way to go. It just gives the organisers on the ground the opportunity to try and resolve those problems and they know - people have a bit of time to know what's coming down the track at them and to react appropriately as opposed to being run over in the first instance, I suppose. If the Commission pleases.

PN67

THE DEPUTY PRESIDENT: Yes. Well, I'm satisfied the jurisdictional requirements exist for an order to issue in that industrial action is happening in relation to work that's covered by a certified agreement. I'm of a mind to issue an order. I will deliberate on when that order is to take effect. If I do issue an order, it will take effect no later than am Saturday, but maybe before am Saturday. I will give time for the unions to organise representation on site to inform delegates and employees on site of the intention for an order to issue. I will expect that the unions advise my chambers as soon as they've made arrangements for representation on site and what those arrangements are before I issue an order.

PN68

Ms Auerbach, the order will be substantially in the terms you've sought other than with respect to its term. I'll deliberate on what its term will be as well, but I'm not of a mind that it should be of an extended term from what's been put so far. Liberty will be provided in the order for rescinding or variation or amendment to any order issued. With respect to the form of the order you need to take account of the comments that I've just made and the observation I've just made. I'll deliberate on that. Should you wish to take account of that and forward me an alternative draft order, I will consider that draft.

PN69

It goes without saying, Ms Scoble and Mr McLean, that there's an expectation once an agreement is certified, indeed, more than an expectation, an obligation to comply with dispute resolution procedures. The Commission is empowered under the terms of certification of these agreements to deal with matters regarding the application of the agreements. On the face of it, the issues that seem to underlie this dispute relate to the application of the agreement. Steps should be taken to ensure that those procedures are followed and, if necessary, matters referred to this Commission if its assistance is sought or needed.

PN70

I would also request that you ensure that it's put as strong as possible terms as soon as is practicable, and by that I mean today, if possible, and that's not necessarily require a waiting of organisers on site, but for employees and delegates on site to be advised and recommended that there be a return to work as soon as is seen as practicable and I'd expect that the unions would make it not only known to employees on site that that's my recommendation, but it's also the union's recommendation. I'll adjourn on that basis. Ms Auerbach, if you wish to provide my office with any alterations to the orders you've sought, taking into account the comments that I've made, I'll entertain any drafts in that regard. This matter is adjourned.

<ADJOURNED INDEFINITELY [11.50AM]